Ponnuru: Liberals Fulfill Caricature in Flextime Fight

Published: Thursday, May 16, 2013 5:30 a.m. CST

It didn’t get a lot of attention. It happened the same day as hearings on the Benghazi attacks and the announcement of a verdict in the Jodi Arias trial. But House Majority Leader Eric Cantor took a modest step forward last week in his plan to broaden the Republican agenda beyond budget cuts.

In February, Cantor had given a speech titled “Making Life Work,” in which he argued that the government should enact conservative policies that would make a difference in people’s daily lives. As an example, he said the government ought to make it easier for employers to offer flextime to their workers.

On May 8, the House passed a bill to do just that. Under the Fair Labor Standards Act of 1938, workers who get an hourly wage must be paid 50 percent more for overtime work. They can’t take their compensation in the form of an equivalent amount of time off. The House bill, introduced by Alabama Republican Martha Roby, would make it possible for them to get an hour and a half off in the future in return for an hour of overtime today.

Karen DeLoach, a bookkeeper from Montgomery, Ala., testified before Congress last month that a flextime option would make it easier for her to help out her niece, who has special needs, and to go on mission trips overseas with her church. April is a busy time for her because of tax returns, and she would like to be able to bank hours then for these purposes.

Almost all House Democrats disagree with DeLoach, and voted against the flextime bill. They say it would erode the sacred principle of the 40-hour work week and let unscrupulous employers coerce workers into turning down overtime pay.

Republicans note that state employees have had the ability to substitute comp time for overtime pay since 1985 and say it’s time for private-sector workers to have the same options. The Democratic retort is that private-sector workers are more vulnerable to their employers because they don’t have civil-service protections and are less likely to be unionized.

The bill attempts to make up for this difference by providing new safeguards for private-sector workers. The legislation requires companies to comply with an employee’s request to cash out his or her accumulated comp time within 30 days, which isn’t the usual practice in the government.

Republican rhetoric often exaggerates how hostile to business Democrats are, but the way they approach issues like this one forms the basis of the caricature. Offered a proposal designed to let employers and workers help each other out, they reacted with reflexive suspicion of businessmen and free markets. They let the theoretical potential for abuse in some cases trump all the people, like DeLoach, whom the proposal could help.

Instead of letting businesses offer flextime, the Democrats’ preferred policy is to require them to offer paid leave. The Congressional Research Service has pointed out that such a policy could lead employers to reduce take-home pay. That’s strange logic: To protect workers from the risk of being pressured into lower take-home pay, the Democrats would actually create a risk that they will get lower take-home pay. But at least nobody will be manipulating their choices, since they won’t have any. It’s the kind of perversity that led my old boss, William F. Buckley Jr., to quip that liberals are for anything as long as it’s coercive.

The arguments against the flextime bill don’t really account for the changes in American society since 1938. The law was enacted at a time when the United States had a much more rigid division of labor by gender, and paid workers – overwhelmingly male – were much less likely to want time off to be caregivers than they are today.

A simple question puts the objections in perspective: If our society hadn’t inherited government restrictions on flextime, would we impose them now? That is, if the law already allowed companies to offer flextime instead of higher pay, in return for overtime, would Congress vote to take that option away? Would most people want it to? It seems pretty clear that the answer to these questions is no.

United Democratic opposition means this bill won’t pass the Senate or be signed by the president. But Republicans seem confident that they have the political high ground. They are sending out emails with titles such as “Why did Elizabeth Esty vote against families?” (She’s a Connecticut Democrat in the House.) Unions may want to stick with the rules of 1938 forever, but that doesn’t seem like a very good bet.

• Ramesh Ponnuru is a Bloomberg View columnist, a visiting fellow at the American Enterprise Institute and a senior editor at National Review.